Lawton v Redemptech Holdings Pte Limited
[2023] NZHC 1394
•6 June 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-002634
[2023] NZHC 1394
BETWEEN KENNETH GEORGE LAWTON
Plaintiff
AND
REDEMPTECH HOLDINGS PTE LIMITED
First Defendant
STEPHEN GEOFFREY BENNETT
Second DefendantGRAHAM ANTHONY VANKAN
Third Defendant
Hearing: (On the papers) Judgment:
6 June 2023
COSTS JUDGMENT OF VENNING J
This judgment was delivered by me on 6 June 2023 at 2.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Craig, Griffin & Lord, Auckland
Race Douglas Burke, Dunedin
Counsel:M C Black, Auckland B Gray, Dunedin
LAWTON v REDEMPTECH HOLDINGS PTE LTD [2023] NZHC 1394 [6 June 2023]
[1] On 17 January 2022 the Court delivered a judgment dismissing Kenneth Lawton’s second amended application to make interim charging orders final.1 As to costs the Court directed:
[117] Costs should follow the event. There is no basis for increased costs on the material before the Court. One set of costs on a 2B basis would seem appropriate. However, I formally reserve the issue of costs in the event there is information the Court does not have.
[2] Counsel have been unable to resolve the issue of costs between them. They now seek to have costs fixed by the Court in accordance with the above direction. In their initial memorandum the defendants sought costs calculated on a 2B basis in the sum of $37,523.00,2 together with disbursements of $270.00. The costs sought were calculated as follows:
Item from Schedule 3
Time allocation from the Rules
Description of step in proceedings and date of filing or appearance Time Allocation in Days Costs 2B Costs 7 Notice of Appearance by counsel for the respondent by way of filing memorandum as to change of representation and address for service 15
July 2021
0.2 $478.00 11 Filing memorandum of defendant in opposition to amended notice of application for final charging orders 20
July 2021
0.4 $956.00 38 Filing opposition and supporting affidavits 6 August 2021 2 $4,780.00 13 Preparation for and appearance at pre- trial conference on 9 August 2021 0.5 $1,195.00 11 Filing memorandum of defendant requesting Case Management Conference 25 August 2021 0.4 $956.00 38 Filing opposition to amended application by plaintiff and supporting affidavits 22
September 2021
2 $4,780.00 15 Preparation for an appearance at pre-trial conference on 4 November 2021 0.5 $1,195.00 24 Preparation of written submissions 26
November 2023
1.5 $3,585.00
1 Lawton v Redemptech Holdings Pte Ltd [2021] NZHC 21.
2 Incorrectly totalled at $37,532.00.
30 Preparation of affidavits, list of issues or
authorities and agreeing on common bundle 26 November 2021
2.0 $4,780.00 32 Preparation for hearing 3.0 $7,170.00 34 Appearance at hearing of defended application for sole or principal counsel 2.0 $4,780.00 35 Second and subsequent counsel if
allowed by court
1.0 $2,390.00 29 Sealing costs order 0.2 $478.00 Sub total of 2B Costs $37,523.00 Disbursements Item Fees payable in respect of proceedings in court High Court Fees Regulations 2013 14(c) Filing notices of opposition on 6 August 2023 and 22 September 2021 $220.00 51 Sealing an order for costs $50.00 Subtotal of disbursements claimed $270.00 Total of costs and disbursements claimed by the defendants from the
plaintiff
$37,793.00
[3] Mr Black has assisted Mr Lawton with a response. While accepting that, in accordance with the Court’s direction, costs on a 2B basis should apply, Mr Lawton takes issue with a number of the items claimed and the quantum of the costs sought. Mr Black submits that certain of the items claimed do not apply, have been claimed more than once, are inflated, or do not apply the correct time allocation.
[4] On the plaintiff’s assessment, the appropriate order for costs is $17,686.00 together with the disbursements of $270.00 which are not challenged. The plaintiff calculates the costs as follows:
Item Time allocation in Days Costs 7 Notice of appearance 0.2 $478.00 38 Filing opposition and supporting affidavits 2.0 $4,780.00 24 Preparation of written submissions 1.5 $3,585.00 32 Preparation for the hearing 2.0 $4,780.00 34 Appearance at defended hearing 1.5 $3,585.00 29 Sealing costs order 0.2 $478.00 $17,686.00
[5]The plaintiff also seeks to set off costs of $9,476 (including disbursements of
$110) for its success in an earlier hearing before Jagose J.
[6] In their memorandum in response the defendants for the first time refer to a Calderbank offer which was rejected by the plaintiff on 27 August 2021. Given that offer and the result, the starting point is that the defendants would be entitled to costs on the steps taken after 27 August 2021.3 However, costs still remain at the discretion of the Court.4 As the defendants have not raised the matter previously and as they have not quantified their actual costs for the steps taken after 27 August 2021, I decline to adjust the award for indemnity costs after 27 August 2021.
[7] Having considered the matters raised by the plaintiff and the defendants in their submissions (including the defendants’ submissions in reply), and having reviewed the file, I deal with the issue of costs as follows, by reference to the adjusted schedule claimed by the defendants in their reply memorandum:
Item Time Allocation
in Days
Costs
Commentary/reasons
7 Agreed 0.2 $478.00 11 Allowed 0.4 $956.00 It was a first case management conference in relation to the matter ultimately determined by the Court. Also the defendants do not claim for preparation for both the conference
and filing the memorandum
23 Allowed 0.6 $1,434.00 The hearing was required as Mr Lawton sought priority 15 Allowed 0.5 $1,195.00 11 Not allowed This was an unsuccessful application
by the defendants to revisit the allocation of a priority fixture
38 Allowed $4,780.00 The second amended notice included Mr Bennett and Mr Vankan as parties. That expanded the focus of the
application
15 Allowed 0.5 $1,195.00 A standard pre-trial conference 24 Agreed 1.5 $3,585.00 30 Allowed in part 2.0 $4,780.00 Standard step for preparation of
affidavits, issues and authorities and common bundles
3 High Court Rules 2016, r 14.11(3).
4 Rule 14.11(1).
32 Agreed 2.0 $4,780.00 Allowed in accordance with the
schedule (even though only 1.5 days was required for the hearing)
34 Adjusted 1.5 $3,585.00 Allowed but calculated on 1.5 days as the actual hearing was concluded by lunch on second day 35 Not allowed Second counsel not allowed for. It was the defendants’ choice to have two
counsel.
29 Agreed 0.2 $478.00 Total:
Plus disbursements:
$27,246.00
$270.00
$27,516.00
[8] There is an issue with the plaintiff’s request to offset its costs against the above award. Rule 14.17 provides:
Set-off if costs allowed to both parties
If opposite parties are awarded costs against each other, their respective costs must be set off and the lesser sum must be deducted from the greater, unless the court otherwise directs.
[9] While I have some sympathy for the plaintiff’s position, the difficulty is that the costs order in the defendants’ favour is in favour of all three defendants. Mr Vankan and Mr Bennett were not parties to the earlier hearing in which the plaintiff obtained the costs order against the first defendant. The previous costs order in the plaintiff’s favour cannot be set-off against the defendants’ entitlement to costs on the current application.
Result
[10]The plaintiff is to pay the defendants’ costs in the sum of $27,516.00.
Venning J
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